106 Ark. 470 | Ark. | 1913
(after stating the facts.) We are of the opinion that the finding of the chancellor that “M. J. Manning, for the plaintiff, and John L. Ingram and J. C. Thweatt for the defendant, agreed to dismiss this cause with prejudice and that judgment was rendered according to said agreement,” is not clearly against the preponderance of the evidence. Indeed, this finding is substantially in accord with the evidence. Attorney Manning does not deny that he agreed with attorneys for appellee to dismiss the cause with prejudice. He only denies that there was any agreement for settlement of the cause by such order of dismissal. The finding of the court being as above stated, the court did not err in entering the following judgment: “It is therefore ordered, adjudged and decreed that this ease be, and the same is, by agreement of counsel aforesaid of plaintiff and defendant, dismissed with prejudice. It is further ordered and adjudged that plaintiff pay the cost of said suit, and that such judgment is now ordered entered of record nunc pro tunc.”
The court, in its finding and judgment, used this language, “which, according to the rules of pleading and practice both at law and in chancery, means a final determination of the case.” There is no evidence in the record to show that this language of the court was used in the original finding and judgment. It is not a necessary or proper part of the judgment. It is only the court’s opinion of what the language of his judgment meant, but the court, in the nunc pro tunc, was not called upon to construe what his judgment meant, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. In a motion for a nunc pro tunc the purpose is to have the written memorial reflect the facts as they actually occurred, not to add additional facts or to make other or additional findings.
There is a sharp conflict in the evidence as to whether there was an agreement between counsel representing the respective parties to the litigation that there should be a settlement-of the litigation by the dismissal of the lawsuit. The court could not undertake to settle this controversy in this proceeding. Whatever the attorneys may have agreed upon, unless the court actually rendered a judgment to the effect that the suit was dismissed and settled, such judgment could not be entered nunc pro tunc, and there is no testimony, as we view the evidence, tending to prove that such judgment was entered. "Whether the language “with prejudice,” in law has this effect is not now for determination. The question simply is, what judgment did the court actually render, and there is no evidence to show that a judgment was entered in terms showing that the case had been settled; but the evidence, as we have stated, fairly preponderating, does show that the parties agreed that the case should be dismissed with prejudice, and that judgment was entered by agreement dismissing the case with prejudice- — -no more no less.
In many, and some very recent cases, the court has announced the rule to be applied by a court in amending its record by nunc pro tunc orders as follows: ‘ ‘ The authority of the court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken. ’ ’ Tucker v. Hawkins, 72 Ark. 21; Bouldin v. Jennings, 92 Ark. 299; St. L. & N. Ark. Ry. Co. v. Bratton, 93 Ark. 234-7, and many cases there cited.
The judgment of the court is therefore modified so as to strike out the words “which, according to the rules of pleading and practice, both at law and in chancery, means a final determination of the case,” and as thus modified it will be affirmed.
